Chapter One: Evidence law General Introduction

Meaning, Nature and purpose of Evidence law

Evidence is something, which serves to prove or disprove the existence or non-existence of an
alleged fact. The party who alleges the existence of a certain fact has to prove its existence and the
party, who denies it, has to disprove its existence or prove its non-existence.

Basic error of law‖ in general and on evidentiary errors in particular, the experience of the cassation
division shows, among others, the cases depict that

There is a basic error of law when any court renders a decision or makes ruling:

1) When false evidence is produced against the party

2) by framing an issue which the pleadings or oral arguments of the parties have not raised or
3) by failing to consider an issue the pleadings or oral arguments of the parties have raised and
the like

(The cassation Division and the Requirements for Basic Error of law‖ Muradu Abdo WONBER‖ law
Jour 2nd half-year, January 2008 at P 52-53

Is there a consensus on the importance of evidence law in regulating the questions of relevancy?

Even though there is a consensus on the significance of evidence law in shaping the process of
proof, there is a dispute on the question whether the law of evidence shall determine which
evidence should be produced and which are not i.e. on question of relevancy. Regarding this issue
there are two approaches:

1) Free Proof: Bentham long espoused a utilitarian theory that the best way to arrive at the
truth was through an application of ―free proof‖. It was his considered opinion that a judge
could be trusted to reach a factually correct verdict provided all relevant evidence was
adduced. In his view, too many rules of evidence and procedure lead to the exclusion of too
much relevant evidence, there by diminishing the search for a factually correct truth. Thus
he advocated abolition of all laws operating to exclude evidence. Recognizing the need for
some restrictions, Bentham felt laws of evidence were needed only to the extent of
preventing 'vexation, expense or delay' and not to hamper the judge from finding out the
truth of matters by using different tactics and approaches.
2) Against Free Proof: the supporters of the second approach argued that it would obviously be
undesirable and chaotic if a judge had unlimited discretion as to which evidence should be
admitted in a case, and as such, there is clearly a need for there to be ground rules for the
admission of evidence so that common standards are applied between all courts and tribunals
dealing with the same type of case. Otherwise, the judges may loss their golden time which in
 return contributes for delay of justice. Therefore, they argued that, in order to give timely and
effective justice the role of evidence rules which regulates the question of relevancy is
unquestionable. However this does not mean that the judges have no any discretion. In some
instances the rule provides for the mandatory exclusion of evidence. In other instances
discretion is given to the judge to exclude relevant evidence in circumstances were fairness
demands it. But there is no judicial discretion to include relevant evidence, which might
nonetheless have a bearing on the search for the truth, but which has to be deemed
inadmissible by applying a rule of evidence.

A number of rules relating to admissibility and use of evidence are directed towards minimizing the
risk of wrongful convictions. And the main risks of error stem largely from the admission of
unreliable or prejudicial evidence. Thus this concept of free proof may allow the court to admit
unreliable or prejudicial evidence, which lead it to a hasty conclusion.

The concept of free-proof also ignores the fundamental importance of procedural rights and the
symbolic importance of trials.

Development of Evidence law

Generally, we can classify the ancient means of proof in to two:
i. Proof by ordeals: Ordeal is about subjecting somebody to undergo a painful experience like
walking on fire, holding glowing with heat, put hands in to boiling water etc.. In different parts of
the world ordeals were used to identify the person who did wrong. proof by ordeal were extremely
irrational and in human,

ii. Proof by oath: proof by ordeal were extremely irrational and in human,

Gradually, the above ancient ways of proof had begun to replace by the new and modern concepts
of evidence rules.

Evidence in civil and common law legal systems

There are two major legal systems (legal traditions) in the world:
1) the Anglo - American (or the common law legal system). And
2) the continental or the civil law legal system.

Differences between the two legal systems regarding the approaches of evidence rules they follow

1) Differences regarding the organization of the rule of evidence:

Common law: have separate rules of evidence or separate code of evidence law. The
rules determine what evidence is admissible and what evidence is not admissible.
Civil law: no separate code of evidence law. Rules of evidence are sparsely distributed in
both substantive and procedural laws.
Why the common law countries took the lead in the codification of evidence law? It is admitted by
almost all authorities that the single main overriding reason for the existence of separate evidence
law in common law tradition is the mistrust of Juries.[panels of some 12 men{non lawyers}] .It is
widely accepted that most Jurors have little experience in analyzing evidence objectively, and many
of them have prejudices that are not easy to suppress .Thus, to control, Jury to objectively analyze
evidence, the option was to set rules which help jury regarding evidence.
But, here in civil law there is no fear that relates to jury to compel an independent code of evidence
source of law
law.
organazations of law
system of inquiry

2) Difference regarding the sources of evidence rules:

Common law: i) a separate code of evidence law enacted by the law-making organ &
ii) judge made evidence rules due to the existence of the precedent system.
Civil law: laws enacted by the parliament.

3) The difference regarding the system of inquiry

Common law: employ the ''Adversarial system'' of evidence gathering. This system is a party-lead
system in which the judge has no investigative role. Here, judge acts as an impartial umpire, policing
the rules of the trial game thereby ensuring fair play. Control in the adversarial process rests with
the parties.

Civil law: employ the ''inquisitorial system'' of inquiry .Here, the court has the task of making
inquiry. It question witnesses, directs the police investigation, commissions the service of expert
witness and examines all relevant evidences. In this system, the trial judge plays a far more active
role than his adversarial counterpart.

4) The differences on the types of evidences they emphasized

Common law: Under common law legal system, the greatest weight and importance is
attached to oral testimony of the parties and their respective witnesses. Here, there is clear
preference for evidence to be tendered in oral form. Documentary evidence is generally
regarded as being inferior to oral evidence. The physical presence of the witness affords the
judge the opportunity of observing the witness demeanor. This is perceived as being a
useful indication of a witness's truthfulness.
Civil law: emphasis is laid on written evidence including notary- attested records of every
sort of transaction, written formalities, registration etc. They belief that, documents do not
lies and they are easily manageable, and economical to bring them before the court of law.
However, in case of witness testimony, it is based on the recollections of different people
who witnessed the events with their own senses.
NB: We are not, however, saying that no written evidence is important in common law nor
do we say no oral evidence is important in continental legal system. They exist in both
systems but the emphasis each system gives differs.
 Are parties themselves competent witnesses in their own case?
Common law: In common law legal systems, parties themselves are competent witnesses
in their own case.
Civil law: no one is a witness in his own case. They are interested in the outcome of the
litigation. Even in civil law countries, the exclusion extends to third parties, like spouse,
relatives and other closely related person's of the party since it is not likely to expect a
neutral testimony form such persons.
Are parties competent Witnesses in their own case, in Ethiopia? Yes. However, there is no
consensus regarding criminal proceedings.but,still it is possible as per Art.20(3)FDRE cons &
142(3)cr.pr.c

5) Is hearsay evidence admissible as a rule?

Common law: The oral evidence must be direct in common law legal systems. Here, there
is a rule, which excluded hearsay evidences. Because, in hearsay evidence there is no test of
accuracy which enables the opponent party in discerning or checking whether or not the
witness is speaking the truth, like cross- examination and physical presence of the real
witness since it is the right of the accused to confront his or her accusers.
Civil law: in civil law legal system there is no rule which excludes ''hearsay' evidence.
Rather, it is left for the court a judge has a discretion to determine the admissibility or
otherwise of the evidence by applying his own personal evaluation.

Evidence in Ethiopia
Ethiopia does not have a separate and codified law of evidence. Rather our evidentiary rules
are found scattered throughout our substantive laws such as the criminal law, private laws
you find in the civil code, commercial code, etc and adjective laws mainly the criminal
procedure and the civil procedure. This here and there scattered evidence rules enables the
Ethiopian evidence system to share both civil law and common law features.

Since our substantive laws are adopted from civil law legal system, considerable code
emphasis is placed on the value of documentary evidence to include provisions for register
and acts of notoriety, which is mainly the feature of continental approach. Moreover, since
our substantive laws are adopted from the civil law legal system, we have a number of
evidence rules scattered throughout our substantive laws like the Articles on proof of
marriage, proof of will, proof of contract, proof of ownership and a lot of legal presumption
which relate to evidence. There are also common law features to the present Ethiopian
evidence system. Since our procedural laws are adopted from the common law legal system,
the method of presentation of evidence envisaged by the civil and criminal procedures is very
much of the common law method of presentation of evidence. The common law features, for
method of presentation.
 instance, cross-examination and impeachment of witnesses, objection to and rulings on
admissibility of evidence and the like are included in our procedural laws. Therefore, we can
say that, the present day Ethiopian evidence system is the hybrid of civil law and common
law features.

Evidence law in civil and criminal cases

Generally, the purpose of evidentiary rules is to assist the court in establishing the truth
between the party's conflicting versions of the fact in the case. However, in criminal cases
the law of evidence has further important purpose, that is, the protection given to the
accused in respect to his right to a fair trial. The protection of the accused against the case
being proven against him by evidence which is prejudicial to his right to afar trade is one of
the main reasons why the law of criminal evidence contains so many rules which excludes
potentially relevant evidences from being produced before the court including, for example,
the general rule that evidence of the defendant's bad character or his previous convictions
will not be admitted at trial, (see art 138 of cr.p.c) different privileges given to witnesses..
etc . The court may also exercise its discretionary power to support the defendant's right to
no exclusionary evidence rules!!
a fair trial by excluding potentially relevant evidences.
While in civil proceedings, evidence that is relevant and probative of a fact, which needs to
be proved to the court, will generally be admissible. There are no mandatory rules requiring
the exclusion of evidence in civil cases. This state of affairs reflects the key difference
between civil and criminal proceeding. Therefore, we can say that the fair trial provision is
not as important in civil case as there is a greater equality in resources between the parties
in contrast with criminal proceedings in which the power full government in one side and
the weaker accused on the other side are there. Also, whilst losing civil case may result in
the claimant or the defendant suffering serious damage to his financial resources or
property, he will not loss his liberty life or suffer the same social stigma as a person who has
been convicted of criminal offence. This is reasons why, there is huge difference regarding
the standard of persuasion required in civil and criminal cases.
The main difference regarding evidentiary rules in civil and criminal cases lies on the
required standard of proof.
The appropriate standard of proof that will have to be satisfied in a criminal case is heavier
than in a civil case. In criminal proceeding, the public processor in order to win the case, he
is required to proof, beyond reasonable doubt. While in civil case the standard is
preponderance of evidence or probabilities.

Now we will discus such other differences in line with our evidence rules shortly.

1. Less importance is attached to the principle of orality in civil proceedings, resulting in far greater
reliance up on the admission of evidence in documentary form. Because in civil cases, most of the
claims are raised from contractual, monetary or proprietary relationships which could mostly proved
civil criminal
heavy reliance on doc eveidence as oppossed to oral the reverse is true
by adducing documentary evidences. While due to the very nature of ways of committing a crime,
the public prosecutor mostly proves his allegation by providing an expert and lay witnesses. And the
crime, which could be proved by documentary evidences, is less in numbers since they are being
committed in a more sophisticated way.

2. There is also a difference between civil and criminal proceedings regarding proof by admissions.
Firstly, in civil cases, the defend ant shall deny each and every fact alleged by the statement of claim
specifically.In Civil caes Silent amounts to admission.But,not in Criminal Case. In criminal cases,
where the accused says nothing in answer to the charge, a plea of not guilty shall be entered.

Secondly, judicial admissions are conclusive in civil cases,but not in criminal cases.in civil
proceedings, where a party formally admits the truth of a fact in issue in the case, the fact ceases to
be in dispute between the particles, and as such any evidence to prove the fact will be ruled as
inadmissible on the ground that it is irrelevant. To put in another way, judicial admissions are
conclusive in civil cases. And the courts are under obligation to give judgments based on such
admission without requiring the production of additional evidences. (see Art 242 of civ.p.c).While in
criminal cases judicial admissions are not conclusive.

Thirdly, in criminal cases, admission shall be made without reservation. When we say the accused
admitted, we are saying that he admitted each and every criminal elements of the alleged offence
usually comprise elements of the mens rea and actus reus . However, in civil proceedings the party
may admit the truth of the whole or any part of the case of the other party.

Classification of evidence
Evidence can directly or indirectly lead to the required conclusion as to whether a disputed fact
exists or not. Thus, evidence is divided in to two:

1. direct
 direct evidence establishes a fact in issue directly.
 Direct evidence is provided by witnesses giving oral testimony of something they
perceived with their own senses. It is also afforded by the presentation of
documents, photographs and the like which the judge is required to interpret with
his senses and includes the physical presence of witness in the witness box giving
rise to an assessment by the judge of the witness‘s credibility. It can include any
incriminating admissions by a party in the case.

2. Circumstantial.
 Circumstantial evidence is indirect evidence that tends to establish a conclusion by
inference. It doesn't directly tell you or prove the existence or non-existence of the
 alleged or disputed fact. But when you put them together, they form a chain leading
to a logical conclusion.
 Circumstantial evidence requires the judge to draw generalizations from commonly
held assumptions about human nature.
 However, there is a possibility of making wrong inferences form such circumstances.
 Thus, circumstances should be taken cumulatively and not in isolation of one from
the other. Where the facts are put together, they lead to a certain logical
conclusion.

SUMMARY:

In common law countries, evidence law is very organized and treated as especial branch of law. The
main reason is the existence of a jury system. In civil law countries, on the other hand, evidence is
found not as a separate body of law but as part and parcel of their substantive or procedural laws.
However, now days, many countries have separate evidence codes without having the jury system.

The methods of proving allegations may be orally, by documentary evidence, or by real evidence.
Broadly, however, evidence may be classified as direct and circumstantial. The one that proves
directly is called direct evidence and the one that proves indirectly by way of making inference from
a given fact is called circumstantial evidence.

Chapter two: Facts, which may be proved other than by evidence

The general rule in both civil and criminal proceedings is that where a party has the legal and
evidentiary burden of proof on a fact in issue, the fact has to be proven by relevant and admissible
evidence.
However, certain allegation of fact by a party does not necessarily need proof. There are three
exceptions to the general rule requiring evidence to be adduced to discharge a legal or evidential
burden where the court may treat a fact as proven without the need for the party bearing the legal and
evidential burdens to put evidence before the court in respect of that fact.

The first exception applies where a party admits a fact by making a formal admission either before
the trial or at the trial. The second exception applies where the proof of the fact in issue may be
presumed by the court from an inference drawn from one or more primary facts. And the third
exception to the general rule is dealt under the doctrine of judicial notice. Judicial notice covers
those facts that are so well known and notorious that it is not necessary for a party to prove that
fact formally to the court.

1) Admission (Admitted facts):

 admitted facts need no proof
  However, if the admission is vague or doubtful, the court may require proof even in
civil cases.
 It is personal; the effect of confession shall be limited only on such person who made
it. Not apply on co-offenders. Incriminating statements made by one of the co-
offenders, shall not be admissible on those co-offenders who do not get Miranda
warnings & wave it intelligently.
before court
 The public prosecutor cannot call one of the co- offenders as a witness against the
others in the same trial. formal addmission
pleading
 Classification of Admission: formal and informal admissions in Criminal cases before prs in aouthority
 Formal admissions: made in pleadings, made before crt of law, inegcriminal police officer.
cases a
formal admission may be made to a person in authority i.e. to the police officer in
answers to interrogations.
 Mostly, informal admissions are out-of-court admissions to a person who are not
authorized to accept admissions, for example, to a friend. Informal admission is a
written or an oral statement made by a party or by a person connected with the
party that is adverse to that party's interests, and is most commonly made in a
letter, fax or an e mail.it may also made in cross examination.
 However, there is a consensus that lesser weight shall be attached to the out of
court admissions given to an authorized person unless they are corroborated by
other evidences.
 Types of Admissions: Judicial and Extra- Judicial
 Judicial admissions are those admissions made as part of the proceeding in the
lawsuit. The mere fact that the admission is made before the court of law does not
make it a judicial admission. To be considered as judicial admission, it should be
given before the court, which handled the case, and not in other courts as the case
in Art 35 of cr.pc. They are ordinary conclusive on the party making them and may
not be contradicted.
 Extra- Judicial admissions as opposed to judicial admission are not made in the
course of court proceedings even though in criminal matters they may have been
made in the course of the criminal proceedings. You may think of confession made
before the investigative police. cofession made to investigative police offcier, cinfession made as per art 35 of CPC before
Extra- Judicial admission is evidentiary admission (it is not conclusive). This is an
admission made outside of the court either orally or in a written form.
Evidentiary admissions may be submitted as evidence but they are not conclusive as
judicial admissions and they may be contradicted.
conclussive Vs non conclusive.

2) Presumption:
  Presumption is an inference made about one fact from which the court is entitled to
presume certain other facts without having those facts directly prove by evidence. In
this, the proof of one fact is taken as the proof of the other fact.
 Presumptions are circumstantial evidences from which if one fact (basic fact) is
proved to exist, the alleged fact exists. However, there are certain presumptions not
prmtion of fact (permissive inferance) depending on proof of basic fact. In such case, the person who alleges such

presumption is not required to prove any basic fact. why presumptions are created ?
 Presumption serves a number of purposes; sometimes the strongest factor probabilisticr/n
policy consideration
explaining the creation of presumption is probabilistic relation. Policy saving time
procedural convenience
presumption considerations, to protect public policy or greater interest of government. To save
time. For procedural convenience, For instance capacity is presumed but if the
court requires proof of capacity in all cases, it is possible to imagine how it may
create procedural inconvenience.
permisive prsmtn
 Types of presumptions: Presumptions can be divided as presumption of fact
presumption of law (permissive inferences) and presumption of law. There is also Permissive
presumptions which shares characteristics form both types of presumptions
Presumption of fact is logical inferences that can be drawn by experience upon
proof of the basic fact.
 Presumptions of laws are always mandatory (crts cannot refuse when z law requires
to do so), but they can be irrebuttable or rebuttable. While presumption facts are
always rebuttable & not mandatory(court dicretionary)
 Presumptions of law are presumption which the law requires the court to make.
They are mandatory in the sense that, where the law requires the court to presume
a certain fact the court cannot refuse to presume. These presumptions used the
phrase‖ shall be deemed or presumed.
 Types of presumptions of law; rebutable and irrebutable presumptions.
 Presumptions of facts are not prescribed by law. Rather they are about logical
inferences that can be made from a given fact. Presumptions of fact are not
mandatory, rather they are permissive in the sense that the court can take it or
leave it at its discretion. They can be rebutted and they require proof of a basic fact.
 Permissive presumptions; like presumption of fact, they are not mandatory, and like
presumption of law they are prescribed under the law. The provisions of the law
which provides permissive presumption contain the phrase‖ may presume...‖ which
shows its permissive nature.
3) Judicial Notice:
 Taking judicial notice has a great value to the courts and the litigant parties in
shortening of trials. benefits
 As most of the scholars agree the matter to take or not to take judicial notice is left
to the discretion of the court. what facts fall under J.N
 facts of commun knowledge.

J.N of adjudicative facts

J.N
verifable facts
 However, the law may require a court to take a judicial notice of a certain facts. In
such cases they are obliged to do so.
J.N of laws
 Generally facts of which the court may take judicial notice can be classified as
judicial notice of a judicative facts and judicial notice of laws /legislative facts.
 Judicial notice of adjudicative facts:
i. Facts of common knowledge
A fact of common knowledge is a fact generally known to be true by the
ordinary intelligence of the people and beyond dispute.

It refers to knowledge that is commonly shared by all people.

It can be ordinary course of nature or matters that a member of a given
community can easily recognize like known public places and
customary practices.

A judge may not take judicial notice of matters known to him to be true
because of his private knowledge unless they are generally known.
Personal knowledge is excluded to increase the confidence of the
society on the judiciary. Whether the fact is known by the sitting judge
or not is immaterial.

A fact to be subject of judicial notice does not have to be universally

known to be true or everywhere. Rather it is sufficient if a fact is a fact
of common knowledge in the territorial jurisdiction of a trial judge.
ii. Verifiable facts
These facts are mostly relates to science, history, art etc

Here, the reference themselves should be undisputed authorities and

the fact must be found to be unchallenged, because what is written on
the text is not always true.

 Judicial notice of law

A judge can take judicial notice of laws in a confident manner in civil law countries/codified
laws than common law countries/judge made laws.

The interpretation of law rendered by the federal Supreme Court cassation bench are
binding on federal as well as regional courts of all level. This means, courts t such decisions
as a law. Thus, in principle, since they are laws, courts are expected to take notice of them.
But a problem may arise as to whether courts are bound to take judicial notice of such
decisions or not, because they are not published in the federal Negarit Gazeta as laws.
Chapter three: Relevance and admissibility of evidences

Evidence must be relevant and--that is, it must have a tendency to make a fact at issue in
the proceeding be more or less probable than it would be without the evidence. However,
the relevancy of evidence is ordinarily necessary condition but not sufficient condition for
the admissibility of evidence. Relevant evidence may be excluded due to different social or
policy reasons.

Facts in issue; Fact in issue is the fact, which is disputed between the parties and to be
resolved by the help of evidence. Issue arises when a certain fact alleged to exist is denied
by the other.
fact in issue - relevent evi-- evidence wich plays aa role in determination or settlnig of fact in issue.

''Relevant evidence‖ means evidence having any tendency to make the existence of any fact
that is of consequence to the determination of the action more probable or less probable
than it would be without the evidence.
To be relevant evidence must have a role in that determination (settling) of a fact in issue.

Relevant evidence need only alter the probability of a material proposition. It is not necessary
that the evidence be conclusive of the case.
While conclusiveness is almost never attainable sufficiency is. Evidence to be relevant it
must have a sufficient degree of probative force.
logic and common sense can be used to determine the relevence to fact in issue
do we only required to submitte evidence to prove fact in issue oo are we required to
Facts Relevant to facts in issue other facts ? iis so to what facts?

The determination of relevancy is based on logic and common sense.

The following discussion focuses with regard to which facts that evidence may be submitted
in addition to fact in issue.
A. Facts forming part of the same transaction (Res-Gestae): This means things done or
said in the course of a transaction. The facts must be so closely related so as to form
part of the transaction. Transaction consists both physical facts and verbal facts (words
spoken).
B. Facts being the occasion, cause or effect of facts in issue
Any fact is relevant which is the occasion, cause or effect, immediate or otherwise of
facts in issue or relevant facts or which constitutes the state of things under which such
facts happened or which affords an opportunity for their occurrence or transaction.

Occasion inquires in to the existence of a favorable environment for the alleged fact to
exist or not. For example, in the case whether A killed B by knife is in issue, the time and
place of the commission of a crime are relevant.
 However, the occasion alone may not help much unless there is an opportunity. Where
you show occasion and opportunity you are heading towards the proof of the
truthfulness of the alleged theft.

Motive; Motive is the compelling force to do a certain act. There can be no action
without a motive, which must exist for every voluntary act. Generally, speaking the
voluntary acts of sane persons has an emotion or motive. If some one has motive to get
money, he may be forced to think of selling his car, committing robbery or theft. He may
ever possibly think of corruption.
Preparation; Motive leads to a specific intent the realization of which may be
preceded by preparation.
Conduct (previous or subsequent)

Relevancy of Confession
Unless a given confession is true it shall not be relevant evidence. And court may require the
prosecution to call evidence. This is the case of excluding a confession on the ground of
unreliability.

However, even though the given confessions are true, they are made inadmissible if they are
obtained in violation of rules of procedure. Here z confession is relevant, but inadmissible because
of legal prohibition. relevant but inaddmisable evidences-- confession given to prsn wz no aouthority-- confession obtnd wz out
cautioning him(unfairness)--cnfsn obt by other than formal interogation.like unaouthorized surveilliance

Confessions made to other persons other than person in authority are inadmissible.

The confession obtained from the defendant who had not been cautioned before being asked to in
criminate himself may be considered inadmissible and may be excluded on the ground of unfairness

Moreover, the confession evidence shall be obtained through the process of formal interrogation.
The police may obtain incriminating admissions other than through a formal interview for instance,
through unlawful installation of a court listening device or through unauthorized surveillance
methods.

The confession given to the police where the suspect was in state of intoxication shall not be
admissible

Smilarly,theconfession obtained after successive and tired sum interrogation for a long period of
time without break should not be acceptable.

generally confessiongiven to unauthorized prsn, or in violation of procedural safeguards, unfairly may be excludede as in admissable though they are relavant
According to Art 19(5) of the constitution one shall not be compelled to confess or admit facts
against him. And evidence obtained under coercion (whether physical or psychological) shall not be
admissible.

in one case the court considered a confession given during interrogation as inadmissible on the
ground that it is not corroborated with real evidences discovered under the direction of the accused
himself.(Supreme court .,Addis Ababa, cr. File No 153/79).

Relevancy of Circumstantial Evidence

Circumstantial evidence is evidence that proves a certain fact indirectly. This evidence is depends
on the surrounding circumstances. And those circumstances are facts, which should be proved by,
evidence

Thus, as far as such circumstances have sufficient connection with the disputed fact they are relevant.
sufficient connection wz disputed fact.
What kinds of circumstantial evidences are there?
Generally, we can classify circumstantial evidences in to three;

1. Prospectant evidence,
2. Concomitant evidence and

3. Retrospectant evidence.

If the occurrence or not of a certain fact at a specific time is in issue, the occurrence of other facts
at the same time by the same person are relevant as a concomitant evidence.

Retrospectant evidence is the opposite of prospectant evidence. It is the case when the existence of
the later fact rifer the existence of the former or which is based on back ward looking style of
reasoning. If it is a material issue whether ―A‖ killed the stranger ―B‖ or not ,evidence that ―A‖
was driving at high speed and failed to stop even at red traffic light 107
is relevant since after a killing a person may try to abscond himself in order not to be detected.

Relevant but inadmissible facts

Relevancy is a necessary condition for admissibility. However it is not a sufficient condition to
guarantee fact to be admissible. This is because there are legal prohibitions against some relevant
facts to be produced as evidence for social and public policy reasons

There is the principle of law of evidence that evidence that is not relevant is not admissible.
Evidence is said to be relevant if it has a tendency to prove or disprove a certain factual allegation.
Relevant evidence may be direct or circumstantial.

Evidence is in admissible if rejected for some reason other than relevancy. Admissibility is, there
fore, abroad concept under which rules for exclusion of evidence irrespective of its relevancy are
grouped.

to be admissible, evidence has to be relevant to a material proposition, without any exclusionary

rule preventing admissibility
admissable= relevant + no rule preventing it from being admissable

 Public policy and privilege

Even though, the evidence is relevant, it may be prohibited from being produced as
evidence before the court of law. One of those situations is the case of public policy. This is
because if they are disclosed, the national interest and governmental secrecy or the
administration of judicial process may be affected. Protecting governmental interest means
protecting public interest. And the public interest prevails over the individual interest. That
is why their production is prohibited for the interest of the public in general. There are three
relevant evidence which may but be proved in the name of public policy. These are
1. Evidence as to affairs of state; No one shall be permitted to produce any unpublished
official records relating to affairs of state or to give any evidence derived there from
except with the permission of the minister of the department concerned.
 2. Information for the detection of crime; No police officer shall be compelled to point
out the person or the ways from which he got any information as to the commission of
any offence.
3. Judicial disclosures; No judge shall be compelled to disclose the judicial process of a
given case or judgment. This is to protect the principle of independence of judiciary.
 Privilege; The purpose of excluding certain relevant evidences from being produced social interest
before the court of law in the name of privilege is to protect certain social interest, which ind. intVs
prevails over the individual interest. spousal privilege, professional secrecy spousal previlage or
professional secracy
 Parole evidence or extrinsic evidence in relation to document
The best evidence rule provides that the best proof of a document's content is the document
itself. A written document can only be proved by the instrumentality of 123 itself.

The parole evidence rule restricts the use of extrinsic evidence be it oral or written and
requires that the party proves his case exclusively by the evidence of the contents of a
writing. As opposed to the best evidence rule, the parole evidence rule does not require that
the evidence of the document be the document itself not oral or other evidence of the
contents. Instead, it simply limits proof of the fact to the contents of the writing and prohibits
consideration of any evidence which contradicts, alter, vary, change, and modify any of the
terms or provisions of the written agreement.

The rationale behind the parole evidence rule is that the parties by reducing their agreement
to writing are regarded as having intended the writing they signed to include the whole of
their agreement. The terms and provisions contained in the writing there because the parties
intended them to be their.

Art 2006(2) of the civil code provides for the parole evidence rule for contracts. Accordingly,
no proof by witnesses or any presumption is admissible against statements contained in a
written instrument.

CHAPTER FOUR: ORAL EVIDENCE

Competence of witnesses
Which persons are capable to testify or are competent witnesses.

Types of Competency of Witnesses:

I) general competency and

 refers to the witness` ability to testify to facts he has observed
 Relates to the ability to understand questions and give rational answers.
 general competency is presumed

II) special competency

  Refers to a witness's ability to testify to opinions or conclusions he has arrived at by
evaluating facts he has observed, facts presented to him by counsel or a combination of both
types of facts.
 Refers to the ability to analyze facts about which one testifies.
 Special competency is not presumed.
 It is subdivided in to two: layman’s opinion, and expert opinion given as testimonies.
 A Lay witness is a witness with no expertise in the matter concerning which he testifies
beyond that of the judge. However, the opinion on of non-expert witnesses will not be
admissible upon the particular cause
 The opinion of expert witness may be required by the court or by either of the parties.

Grounds of incompetence
The witnesses…competency is the rule, their incompetence the exception, and that incompetence
lies within a very narrow compass
1. Mental incapacity: It comprises children, insane, and intoxicated persons, whose conditions
may be long lasting or intermittent in nature.
2. Physical incapacity: This covers those persons, who have visual, hearing, and speaking
deficiencies. However, according to the general rule, physical incapacity is no bar to a
witness's competency as long as he can understand the questions put to him and give
rational answers to those questions.
3. Legal interdiction (Conviction of a crime): In present Ethiopia this is no longer a bar to
competency of a witness. However, a witness may be asked about prior convictions to
impeach his credit.
4. Interest in the outcome of the case as ground of incompetence: it can be used to impeach
witness credibility.

Examination of witness
There are three forms of questions in oral evidence, namely; examination in chief, cross-
examination, and re-examination

It is the principle of evidence law that the party who bears the burden of proof has right to begin.

Hearsay evidence
it is a type of oral evidence given by a witness based on the information he has attained from the
statements made by others. For many reasons hearsay is in principle inadmissible.

Hearsay is legal term that describes statements made out side of court. However, all statement
made out of court are not hearsay.

it is a maxim of law that hearsay evidence is not relevant.

Is hearsay evidence admissible in Ethiopian as a rule? 146
There are different out looks regarding the admissibility of hearsay evidences in Ethiopia. Both Art
137(1) and Art 263(1) of the Ethiopian criminal procedures and civil procedure codes respectively
provide that ―questions put in examination in chief shall only relate to facts which are relevant to
the issue to be decided and to such facts only of which the witness has direct or indirect
knowledge‟‟. Here, some provides that the phrase ―indirect knowledge” in the above provisions
include ‗hearsay evidence‘. Thus, they argued that, in Ethiopia hearsay evidence is admissible as a
rule, not as an exception. While, other argue that the phrase ‗indirect knowledge‟ implies the
circumstantial evidences rather than hearsay evidence. They provides that since admitting hearsay
evidence as a rule is against the constitutional rights of the accused to confront his accusers as
provided under Art.20 (4) of the FDRE constitution, we have to admit hearsay evidence only in
exceptional circumstances as that of common law countries. When we see the practice of our courts it
is clear there is confusion on admissibility of hearsay evidence. There is no uniform application of
the rule; some judges admit it while others do not.

Justification for exclusion of hearsay statements

A. Lack of cross- examination

B. Absence of oath: that the declarant is not under oath. Usually the out-of-court declarant was
not under oath at the time of declaration.

C. Testimonial infirmities: This mean the person who made the statement may have wrongly
perceived the events in question, and because of fallibility of human nature, the memory of the person
who heard the statement may be affected and finally there may be distortion of events.

Exception to hearsay evidence

There are certain exceptions to the hearsay rule, which makes the hearsay evidence admissible.

i. Dying Declaration: these are declarations made by a person who knows that his
death is imminent and a person cannot be found at the time the testimony is
required.
ii. Statements made in the ordinary course of Business
iii. Declarations against interest
iv. Statements of opinion as to the existence of a public or general right or custom.
The opinion here is as to the existence of the right not the existence of facts, which
make it likely the right, exists.
Exclusionary rule: Privileges
The term privilege means a freedom from compulsion to give evidence, or a right to prevent or bar
evidence from other sources, usually on grounds unrelated to the goals of litigation.

In the absence of privilege, parties, witnesses, and others, can be compelled by a court to give testimony
or other material they may have that is needed for court proceeding even if it is damaging to themselves
or others. The usual principle is that the law is entitled to every person’s evidence. Privileges are a
narrow exception to these general rules.
Most privileges are designed to promote certain kinds of relationship, and particularly to promote
confidential communication within the socially desirable relationships.
Policies underlying privileges:
1) to encourage desirable communication within certain kinds of special relationships, for
purposes that society particularly wishes to foster.
2) to protect the desired relationship itself
3) to uphold the integrity of a profession
4) to advance economic policies
5) limit governmental invasion of the security of individuals

Types of privileges

1) The right against self- incrimination

2) Governmental privileges
3) Professional confidentiality

 Attorney-client privilege
 Doctor-patient privileges

4) Marital privileges
i. The “confidential communications” privilege in the marital context
ii. The “Adverse Spousal Testimony” Privilege (as Distinct from the communications
privilege)
The communications privilege applies only to prevent disclosure of confidential marital
communications; the adverse spousal testimony privilege can entirely prevent the spouse
 from taking the stand as a witness adverse to other connubial partner, regardless of the
subject matter of the expected testimony. The communications privilege applies in civil and
criminal litigation unless subject to an exception; the testimonial privilege is frequently
confined to criminal.

5) Other privileges
Are there other socially desirable relationships or professions?

Being a witness is both a right and duty of individuals. If anybody having the knowledge of a certain fact
wants to testify, he has the right to do so. On the other hand, a person with some information which is
necessary for the determination of a dispute can be obliged to give his testimony. The concept of
privilege is the only exception for this rule. A person with privilege will either not be allowed to testify or
will not be forced to testify.

CHAPTER FIVE: REAL EVIDENCE

Real evidence is a type of evidence for which the court can personally inspect and make inferences and
conclusions on the existence or non-existence of fact to which the evidence is sought to prove.

Real evidence comprises of documents and physical objects in various forms. Not all documents and
physical objects are real evidences to prove a fact unless they satisfy the tests of authentication and
corroboration, respectively.

Demonstrative evidence

Demonstrative evidence concerns itself with any type of physical objects which are capable of being
inspected by the court and demonstrate the existence of a fact in issue.

Demonstrative evidence is evidence in the form of a representation of an object. Examples include

photos, x-rays, videotapes, movies, sound recordings, diagrams, maps, drawings, graphs, animations,
simulation, and models.

Exhibits generally fall into one of two (2) categories (1) real evidence; or (2) demonstrative evidence.
Here is a list of illustrative facts used as demonstrative evidence:
 Plaster casts or molds
 Scale models
 Maps, charts, diagrams, and drawings
 Police composites, mug shots, sketches
 Photographs
 Microscopic enlargements
 Videotapes
 Computer reconstruction or animation
 Scientific tests or experiments

General rules (requirements for demonstrative evidence):

 there must be some other piece of evidences

 Certain preliminary steps must he followed such as authentication and accuracy.

 Identification—the demonstrative evidence must be an exact match to the underlying evidence

or the testimony illustrated. This requirement is the same as with real evidence

 Demonstrative evidence must pass the “three hurdles” of admissibility: relevancy; materiality;
and competency.

Documentary evidence
Shall be subject to:

 Authentication(who is z author & geniuness of z document)

 best evidence rule (contents of a document can only be proved by adducing the original
document itself)

Documentary evidence is a type of written proof that is offered at a trial to establish the existence or
nonexistence of a fact that is in dispute. Letters, contract, deeds, license, certificate, ticket, or other
writings are documentary evidence.
A piece of evidence is not documentary evidence if it is presented for some purpose other than the
examination of the content of the document. For example, if a blood-spattered letter is introduced
solely to show that the defendant stabbed the author of the letter from behind as it was being written,
then the evidence is physical evidence, not documentary evidence. However, a film of the murder taking
place would be documentary evidence (as a written description of the event for an eyewitness). If the
content of that same letter is then introduced to show the motive for the murder, then the evidence
would be both physical and documentary.

Documentary evidence is any evidence introduce at a trial in the form of hard or soft (electronic)
documents. Photographs, tape recording, film, and printed emails are all forms of documentary
evidence.

Documentary evidence is also subject to the best evidence rule, which requires that the original
document unless there is a good reason not to do so.

Documentary evidence is subject to specific forms of authentication (a mechanism of ascertaining who

author of a document is?) usually through the testimony of an eyewitness

Modes of authentication

A) Admission of authorship by the writer

B) proof of signature or handwriting
C) Presumption as to documents not produced
D) Comparison of signature /writing with others admitted or proved
E) Opinions of experts

Best evidence rule

Contents of a document can only be proved by adducing the original document itself. The general rule is
that secondary evidence, such as a copy or facsimile, will be not admissible if an original document is
available.

Rational; there is a significant chance of error or fraud in relying on such a copy.

The best evidence rule is also thought to be the basis for the rule precluding the admissibility of hearsay
evidence, although the two rules are now quite distinct.

The rule requires that when writings are introduced as evidence in a trial, the original writing must be
produced as the “best evidence”.

Summary

Real evidence refers to the manner of ascertaining alleged fact by physical observation or inspection by
the court of the fact in issue.

When physical appearance is not possible, represented models of physical realties such as photographs,
x-rays, charts, graphs, diagrams, computer animations and other demonstrative evidences could be
used mostly in support of testimonial evidence. However, demonstrative evidence must be
corroborated in order to be admitted as evidence.

documentary evidence is the most reliable sort of evidence. But, in order the contents of documents to
be reliable and admissible, they have to be authenticated.

CHAPTER SIX: BURDEN AND STANDARD OF PROOF

BURDEN OF PROOF

It has two aspects

1) Burden of production (evidentiary burden) &
2) Burden of persuasion (legal burden)

Burden of proof constitutes burden of production (evidentiary burden) and burden of persuasion (legal
burden). The former refers to making available of sufficient amount of evidence at the disposal of the
court. On the other hand, burden of persuasion is to mean the obligation to persuade the court to the
standard required by the nature of the case using the evidence produced by either party

The same party may bear both evidential burden and legal burden at the same time. i.e. where the party
produce sufficient evidence to make a case he/she shall again establish a fact so as to persuade the tier
of fact. These two burdens have not analogous application in civil actions and criminal offence.
In general, the plaintiff and public prosecutor in civil matters and criminal proceeding respectively bear
burden of proof. Notwithstanding the application of the general rule, in some exceptional situations the
burden of proof may shift to the defendant both in civil and criminal proceedings. In civil matter this
happens where the defendant admitted the claim of the plaintiff and raised affirmative defense. In
criminal matters on the other hand, the burden of proof shifts to the accused when proof by the public
prosecutor is difficult but easier for the accused to produce evidence.

Burden of production

A party who has a claim or an allegation bears the burden of producing evidence to Enable the court
believe that there is an issue in the case.

Burden of producing evidence is the obligation of a party to introduce evidence sufficient to avoid a
ruling against him on the issue.

Burden of persuasion

This type of burden of proof is the second burden that litigant party bears. This is determined by rules of
substantive laws. This burden is simply adducing enough evidence to raise an issue must be
distinguished from the burden imposed on a party to persuade the tier of fact to fined for him/her any
particular issue.

The burden of persuasion differs in civil and criminal cases. Beyond reasonable doubt in criminal cases,
and by preponderance of Evidence in civil actions.

When we say a party bears burden of persuasion, it is to mean that the party has to persuade the tier of
fact so that a judgment is to be given in favor him. The party can win the case when only he proves
persuasively the existence or non-existence, or occurrence or non-occurrence of the fact in issue

the party who shoulders the burden of persuasion shall prove beyond reasonable doubt in criminal
cases and shall prove to the extent of 51% (preponderance of Evidence,) in civil matters.

“courts in Ethiopia consider burden of proof to mean burden of production only and on other times
burden of persuasion only, and some times it refers to both burdens.” with out putting a clear cut
distinction between the two
Beyond reasonable doubt: means that the proposition being presented by the government must be
proven to the extent that there is no "reasonable doubt" in the mind of a reasonable person that the
defendant is guilty. There can still be a doubt, but only to the extent that it would not affect a
"reasonable person's" belief that the defendant is guilty. If the doubt that is raised does affect a
"reasonable person's" belief that the defendant is guilty, the jury (the court in our case) is not satisfied
beyond a "reasonable doubt".

The concept ' beyond reasonable doubt' is not adopted by Ethiopian laws despite practical adoption by
judges in many cases.

Rational for the requirement of high standard of proof in criminal proceeding:

1. The existence of presumption of innocence

2. The unbalanced position of the parties in criminal cases unlike that of civil cases
3. The irreversible grave nature of criminal punishment, if once erroneously executed i.e. in order
not to punish innocent.